LEGAL LANGUAGE: An Introduction to the Study of Law in India

By Nayab Naseer

This book covers the basics of law in India. The first part of the book deals with the concept of sovereignty and rule of law. The second part summarizes the Constitution of India. The third part is an overview of the administration of justice in India including procedures of arrest, hierarchy of court, rules for interpretation of statues, procedure for bail, rules of evidence etc. The fourth part gives an overview of various legal doctrines and maxims. The fifth part contains a gist of the application of the law in the society, including topics such as Public Interest Litigation, Judicial Activism, and more. This work is especially useful for law students in India.

• Language: English
• Publisher: Nayab Naseer
• Release date: Jun 2, 2017
• ISBN: 9781370168125

Nayab Naseer

Nayab Naseer is a post graduate in Human Resource Management with over a decade of corporate work experience in India and the Middle East. He likes to travel, read books, and write!

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LEGAL LANGUAGE

AN INTRODUCTION TO THE STUDY OF LAW IN INDIA

Nayab Naseer

Smashwords Edition

Copyright 2017 Nayab Naseer

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TABLE OF CONTENTS

PART 1: SOVREIGNITY AND RULE OF LAW

Sovereignty

Rule of Law

Sources of Law

Custom as Law

Precedent

Legal Rights v Natural Rights

Common law v Civil Law

Public Law v Private Law

Constitutional Law v Administrative Law

Procedural Law v Substantive Law

PART II: THE CONSTITUTION OF INDIA

Preamble of the Constitution

Equality of Law and Equal Protection of Law (Art 14)

Fundamental Rights

Freedom of Press in India

Directive Principles of State Policy

Difference between Fundamental Rights and Directive Principles

Fundamental Duties

Freedom of Religion and Secularism under the Constitution of India

Writs

National Emergency

President’s Rule (Art 356)

Cabinet Form of Govt v Presidential Form of Government

Part III: THE ADMINISTRATION OF JUSTICE

Interpretation of Statues

Hierarchy of Court

Jury System

Offences

First Information Report

Bail

Arrests

Summons

Pleadings

Plaint

Oral Evidence

Affidavit

Power of Attorney

Witness

Approver

Confession

Speaking Order v Non Speaking Order

Capital Punishment

Part IV: LEGAL DOCTRINES AND MAXIMS

Doctrine of Stair Decesis

Doctrine of Ratio Decedenti

Doctrine of Obiter Dictim

Doctrine of Res Judicata

Doctrine of Sub Judice

Doctrine of Estoppel

Doctrine of Eclipse

Doctrine of Severability

Doctrine of Laches

Doctrine of Respondent Superior

Ignorantia Juris Non Excusant

Actus non facti Reis Nisi Mens Sit Ria

Generalia Specialibus Non Derogant

Delegata Protestas non potest delegari

Actio Personalis Moritur cum persona

Qui Facit per alium facit per se

Ex turpi causa non oritur actrio

Adui Alterim Partem

Nemo Debel bis Vexari Pro Una Et Edaem Causa (Double Jeopardy)

Ubi jus ibi remedium

Contempt of Court

Doctrine of Locus Standi

PART V: THE LAW AND THE SOCIETY

White Collar Crimes

Public Interest Litigation

Judicial Activism

Doctrine of Public Trust

PART I: SOVREIGNITY AND RULE OF LAW

SOVREIGNITY

Sovereignty is the supreme power of the state over all individuals and associations within its own territorial limits.

Sovereignty = the right to demand obedience. Derived from the Latin word superannus meaning supreme,

Sovereignty is a chief attribute of a state. A sovereign state:

1. Is not subordinate to any other state or entity (freedom from foreign control)

2. Has supreme control over its territories

3. Is the final authority to make laws and take political decisions in its realm

4. Has power to punish offenders and renegades

Types of Sovereignty

1. Nominal and Real Sovereignty: absolute power wielded by kings. Parliament or council of ministers, if it exists, were powerless eg; France before French revolution (1789), England before Glorious Revolution (1688)

2. Legal Sovereignty: authority which has the legal power to issue final commands, eg: English parliament, Thailand’s ruling junta. Bryce: legal sovereignty lies in that authority, be it a person or a body, whose expressed will shall bind others, and whose will is not liable to be overruled by the expressed will of anyone placed above him or it.

3. Political Sovereignty: The force or entity that confers legal sovereignty: eg: People who elect MPs. Professor R.N. Gilchrist, "Political sovereign manifests itself by voting, by the press, by speeches, and in many other ways not easy to describe or define. It is, however, not organized and it can become effective only when organized. Legal sovereigns cannot go against the will of the political sovereign.

4. Popular Sovereignty: power of masses. Eg: power of majority of electorate (democracy)

5. De Facto (actual) and De Jure (legal) Sovereignty: De facto sovereign is people who can make their or their will prevail whether with the law or against the law, and the person to whom obedience is actually paid. De Jure sovereign is the figurehead. Eg: Edapaddy Palaniswamy is de jure sovereign and Sasikala / Mannargudi mafia is the de facto sovereign. Napoleon Bonaparte was de facto sovereign, not de jure sovereign. Mussolini was de facto sovereign, Italian Parliament was de jure sovereign.

Theories of Sovereignty

Concept of sovereignty as we know it today was unknown in ancient and medieval times.

MACHIVELLI (1469-1527, Italy):

State is absolute and an end in itself, and cannot have any restraints on its powers. State is not subordinate to church or natural laws.

JEAN BODIN (1530-96, France):

First expounded the concept of sovereignty.

THOMAS HOBBES (1588-1679, England):

Sovereign is absolute and not bound by anything. Powers of sovereign extends overall matters of state, including religion.

JAMES BENTHAM (1709-1794, England):

Advocated absolute power for sovereign, on grounds of hedonism. The sovereign should make laws in conformity with principal of utility.

JOHN AUSTIN (1790-1859, England):

1. A Sovereign does not obey any political superior, and commands habitual obedience from a bulk of his/her subjects.

2. Members of the society are dependent on the superior sovereign

3. Sovereignty is unlimited

4. Sovereign is undividable.

5. Society without a sovereign cannot be called a state

Eg is British Parliament, which can make or unmake any law, and whose only limits are physical limits.

Implications of Austin’s Theory

1. Command is the essence of sovereignty. The character of the state is immaterial. The state many act unwisely and dishonestly.

2. Sovereign issues laws and punishes those who disobey such laws

3. There is no limit on the exercise of its power. However, sovereign may have de facto limitations, such as:

(i) Coercive force which the sovereign has under his commandments

(ii) The docile disposition of its people

Criticisms against Austin’s theory

1. It ignores popular sovereignty and public opinion

2. Law is not the command of the sovereign – common law, customs etc are all valid and legitimate sources of laws

3. Sovereignty is dividable. Sovereignty does not reside with a determinate person in the federation:

4. Force is not the only sanction behind laws

5. This theory is out of sync with practical reality. No state, even in Europe, has sovereignty according to Austin’s theory.

AV DICEY:

In parliamentary democracy, parliament is the legal sovereign and people are political sovereign. So concept that sovereignty is undividable is wrong. Eg: Under Sn 53 of Constitution of India, executive power is with President, legislative power is with parliament, and houses of state, and there is judiciary as well.

LAKSI:

No sovereign, anywhere, anytime held unlimited power, and attempts to do so always resulted in establishment of safeguards and overthrow of such sovereign. Even Hitler, Pot-Pal, etc did not wield unlimited power, and neither does the English Parliament.

HENRY MAINE:

Only a despot with a disturbed brain fits Austin’s description of sovereignty. Even despots such as Maharaja Ranjit Singh did not issue commands that opposed customs, usage, and religious beliefs of people

BLUNTSCHI:

State as a whole is not almighty

LESLIE STEPHENS:

Sovereignty is limited from both within and without. Laws can only regulate only external actions of human beings. It cannot regulate internal actions.

JOHN SALMOND (1862-1924):

1 A sovereign authority is essential in every political society

2. The sovereign authority has uncontrollable power in his/her sphere of influence. But the power of sovereign may be limited by

a. extent of his physical force

b. the docility of his subjects – eg: Jallikettu protest force sovereign to issue ordinance,

c. checks and balance of the constitution : eg Indian judiciary, limited powers of US Congress

3. The sovereign many not necessarily be found within the confines